October 18, 2019

Bloomberg Law: There is a Lack of Consensus among Stakeholders on Patent Eligibility Reform

Holland & Knight Section 101 Blog
Anthony J. Fuga

As we know, Senators Thom Tillis (R-N.C.) and Chris Coons (D-Del.) introduced a draft bill months ago that would "reform Section 101 of the Patent Act" and followed that up with a series of congressional hearings. Senator Tillis stated at the close of the hearings that he hoped to revise the draft language and introduce a final bill soon after the July 4 recess. Three months later, they have not yet released that bill.

But if you’re pining for patent reform news, Malathi Nayak at Bloomberg Law provided it this week. She reports that the senators' effort to introduce the final bill is delayed due to a stakeholders’ disagreement related to Section 112(f) of the Patent Act.

Section 112(f) is often referred to as the "means-plus-function" provision of the Patent Act, and Senators Tillis and Coons' draft bill included a revision to Section 112(f), in addition to their revisions to Section 101. It is unsurprising that the interplay between Section 101 reform and Section 112 is a sticking point, especially in light of Judge Kimberly Moore’s recent dissent in American Axle v. Neapco, the concerns raised during the congressional hearings, and some of the backlash concerning the draft revision to Section 112(f). 

Despite all of this, Malathi Nayak reports that the working group plans to present the revised draft to Senators Tillis and Coons "in the next several weeks."

Malathi Nayak’s full report can be read here. She provides further information on who’s leading the effort behind the scenes and received comment from Senator Coons’ office and the ABA. 

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